Gavin Howe
The concept of nullification in the United States Constitution refers to a state's ability to nullify or invalidate federal laws that they deem unconstitutional. While states cannot block federal authorities from enforcing a federal law, they are not required to enforce federal laws that they have deemed unconstitutional. The Supremacy Clause in the Constitution states that federal laws are the supreme Law of the Land, but the 10th Amendment to the Bill of Rights reserves powers not delegated to the federal government to the states or the people. This has resulted in conflicts between federal and state laws, such as in the legalisation of marijuana in certain states, the creation of gun and immigrant 'sanctuary' states, and the enforcement of federal income taxes and drug laws.
| Characteristics | Values |
|---|---|
| Supremacy Clause | Federal laws take priority over conflicting state laws |
| Nullification | States can declare federal laws unconstitutional, but the declaration has no legal effect unless the courts agree |
| State Nullification | A state can nullify or invalidate federal laws that they deem unconstitutional |
| Jury Nullification | Juries can nullify federal laws |
| State Marijuana Legalization | States can legalize marijuana, but it is still illegal at the federal level |
| State Gun Laws | States can create gun sanctuaries despite federal laws |
| Immigration Laws | States can choose not to enforce federal immigration laws |
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Nullification
The theory of nullification has been rejected by federal courts, which have consistently held that under the Constitution, the states do not have the power to nullify federal laws. The courts have rejected the compact theory, finding that the Constitution was not a contract among the states but was instead established directly by the people, as stated in the preamble: "We the people of the United States...". The Supremacy Clause of Article VI further supports this by stating that the Constitution and federal laws made pursuant to it are "the supreme law of the land... anything in the constitution or laws of any state to the contrary notwithstanding."
Despite this, there have been several notable historical attempts by states to nullify federal laws, including:
- The Kentucky and Virginia Resolutions of 1798, which sought to nullify the Alien and Sedition Acts.
- The Nullification Crisis of 1832-1833, where the South Carolina legislature passed an Ordinance of Nullification declaring two federal tariffs, the Tariff of 1828 and the Tariff of 1832, "null, void, and no law" because they disproportionately burdened southern states.
- Arkansas's attempt to nullify Brown v. Board of Education in 1957, which was related to school segregation.
In modern times, the issue of nullification has resurfaced in relation to state legalization of marijuana, which is still illegal at the federal level. While the federal government lacks the resources to enforce its marijuana laws on a large scale, it is important to note that nullification of federal laws by states remains controversial and has never been legally upheld by federal courts.
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Supremacy Clause
The Supremacy Clause is a part of the US Constitution that establishes federal law as "the supreme Law of the Land". It states that federal law and the Constitution itself take precedence over any conflicting rules of state law. In other words, it gives the federal government the power to trump state governments when acting in pursuance of the Constitution.
The Supremacy Clause was included in the Constitution in response to problems with the Articles of Confederation, which lacked a similar provision. As a result, during the Confederation era, federal statutes did not bind state courts unless there was state legislation implementing them. The Supremacy Clause was intended to address this issue and establish a more robust role for the federal government in managing the nation's affairs.
The Supremacy Clause has been interpreted to mean that the Constitution binds the judges in every state, regardless of any contrary state laws. This includes the power to determine the constitutionality of federal laws, which lies with the federal courts and not the states. The Supremacy Clause also establishes that treaties are capable of directly establishing rules of decision for American courts, breaking from the traditional British rule that treaties did not have domestic legal effect.
Despite the Supremacy Clause, there have been instances where states have defied federal laws. For example, several states have legalised marijuana and created sanctuary states for immigrants despite federal law. In some cases, the federal government lacks the resources to enforce its laws, effectively making these laws de facto legal at the state level. In other cases, the federal government may need to pay for law enforcement to enforce its laws or convince states to cooperate.
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Marijuana laws
Marijuana is classified as a Schedule I Drug under federal law, which means it is treated as one of the most serious and deadly drugs. Under the Controlled Substances Act (CSA) and the Supremacy Clause of the United States Constitution, federal law is considered the "supreme Law of the Land". However, the Tenth Amendment's "anti-commandeering rule" prohibits Congress from forcing states to mirror or enforce federal policies. This has allowed states to create their own marijuana laws and regulations.
In 1996, California became the first state to legalize medical marijuana, creating an exception to its state marijuana possession law for residents who met certain medical requirements. Since then, other states have followed suit, with 24 states legalizing recreational use and 38 states legalizing medical use as of November 2023. These states have effectively decriminalized marijuana possession, distribution, and use, reducing the number of people arrested for cannabis-related offenses and allowing safe and regulated access.
While federal law still considers marijuana possession, distribution, and use illegal, the federal government has largely taken a position of non-interference with state-legal marijuana businesses. The Department of Justice's Cole Memo, issued in 2013, advised federal prosecutors to prioritize other areas of marijuana enforcement, such as revenue that appears to fund gangs or distribution to minors. Although the Cole Memo was rescinded in 2018, the non-enforcement practice has continued under the Trump and Biden administrations.
The conflict between federal and state marijuana laws has created a complicated legal landscape. Individuals complying with state marijuana laws may still be violating federal law, and federal prosecutors can choose to pursue criminal cases when state and federal laws collide. However, federal prosecutions for marijuana offenses are rare, with most marijuana arrests occurring at the state and local levels.
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Immigration policies
While the United States federal government regulates immigration, states also have their own laws that can control immigration within their borders. The federal government's jurisdiction over immigration law has been consistently upheld by the U.S. Supreme Court, which has overruled attempts by state legislatures to single out immigrants. The Supremacy Clause of the U.S. Constitution generally means that federal laws take precedence over state laws. However, there are exceptions to this. While states must operate within specific parameters, they have some freedom to determine the laws within their jurisdictions.
For example, California is a "sanctuary state" that provides more generous benefits to immigrants, while Texas has successfully restricted benefits for immigrants. Many states have passed legislation limiting immigrants' access to public benefits, such as SNAP (formerly food stamps) and Medicaid, and have directed state and local police to check the legal immigration status of individuals. Some states have gone further, passing laws that punish localities that implement sanctuary policies, and attempting to force state and local law enforcement to become an arm of the federal detention and deportation system.
The federal government has challenged many state immigration laws based on jurisdiction, arguing that a "patchwork" of different immigration laws will not fix the country's immigration system. The U.S. Congress controls all immigration-related regulations, while the White House is in charge of enforcing these laws. The Immigration and Nationality Act (INA) dictates most aspects of federal immigration law, including visas and citizenship status.
State and local law enforcement can enforce immigration law under certain circumstances. For example, the Immigration and Nationality Act (INA) allows state and local law enforcement to arrest and detain aliens illegally present in the U.S. with prior felony convictions. Under 287(g) programs, state and local law enforcement officers can be deputized to assist the federal government in enforcing certain aspects of immigration law. While there is no federal legal obligation for state and local jurisdictions to use their resources for immigration enforcement, police and sheriff's departments have often voluntarily assisted ICE. However, critics argue that federal law only authorizes state and local enforcement of immigration laws in specific circumstances, and that local involvement in immigration enforcement undermines the safety and integration of immigrant communities.
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Gun laws
In the United States, federal and state gun laws exist concurrently, and it is essential to understand both when dealing with gun-related issues. The major difference between the two is who makes and enforces the law and the penalties for breaking them. While federal and state gun laws may overlap, understanding both frameworks is crucial to comprehend all the possible ways in which an individual might be breaking the law.
State laws vary, and some states have attempted to pass nullification laws aimed at federal gun legislation that they believe violates the Second Amendment right to bear arms. For example, Kansas passed the Second Amendment Protection Act (S.B. 102), which seeks to prevent federal enforcement of gun laws concerning firearms, accessories, or ammunition manufactured and kept within the state. However, these attempts to nullify federal law have faced legal challenges, with the U.S. Attorney General arguing that under the Supremacy Clause of the U.S. Constitution, Kansas cannot prevent federal employees from carrying out their official responsibilities.
The controversy surrounding the enforcement of federal gun laws in states like Kansas remains unresolved. The Brady Center to Prevent Gun Violence has filed a lawsuit arguing that the Kansas measure violates the Constitution's Supremacy Clause and seeking to strike down the state's nullification law. The outcome of this legal battle will have significant implications for the debate over state power to nullify federal legislation.
It is important to note that only federal law enforcement agencies, such as the Bureau of Alcohol, Tobacco, and Firearms (ATF), can arrest someone for violating federal gun laws. Local police can arrest an individual for violating state gun laws and hand the case over to the state prosecutor. If local police suspect a violation of federal gun laws, they should notify the ATF or the U.S. Attorney's office, which acts as the federal prosecutor. In cases where an individual breaks both state and federal gun laws, they may be prosecuted in both state and federal courts.
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Frequently asked questions
Yes and no. The Supremacy Clause dictates that federal laws take priority over state laws, but states can choose not to enforce federal laws if they are deemed unconstitutional.
No, states cannot block federal authorities from enforcing federal laws unless a court has deemed the law unconstitutional.
Yes, individuals can be prosecuted by the federal government for breaking federal law, even if that action is legal in their state of residence.
No, states cannot exempt people from paying federal income taxes. However, states are free to structure their own state tax systems as they see fit.
Yes, states can legalize drugs that are criminalized by the federal government, but federal authorities can still enforce federal drug laws in those states.
